NHTK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 35
•18 January 2024
NHTK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 35 (18 January 2024)
Division:GENERAL DIVISION
File Number: 2023/8101
Re:NHTK
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick
Date:18 January 2024
Place:Melbourne
The decision dated 25 October 2023 not to revoke the mandatory cancellation of the Applicant’s Protection (Subclass 866) visa is affirmed.
........................[SGD]........................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – national of Pakistan – Protection (Subclass 866) visa – failure to pass character test – firearms, weapons and violence offences – dishonesty and driving offences – whether another reason mandatory cancellation should be revoked – Ministerial Direction No. 99 applied – Applicant in the community – suggested likely mental health condition – legal consequences of the decision – impact of bridging visa and its conditions considered – decision affirmed
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth)Migration Amendment and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (Cth)
Migration Regulations 1994 (Cth)
Cases
DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs[2023] AATA 3922
DOB18 v Minister for Home Affairs[2018] FCA 1523
Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Secondary Materials
Department of Parliamentary Services (Cth), Bills Digest (Digest No 38 of 2023-24, 5 December 2023)Direction No. 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Dr Stewart Fenwick
18 January 2024
BACKGROUND
NHTK applied on 1 November 2023 for review of the decision by a delegate of the Respondent dated 25 October 2023 not to revoke the mandatory cancellation on character grounds of his Protection (Subclass 866) visa.
The Applicant’s visa was cancelled in March 2023 under s 501(3A) of the Migration Act 1958 (Cth) (the Act) as a result of convictions received in the County Court in December 2022 which led to NHTK being sentenced to periods of imprisonment in excess of 12 months, meaning that he had a substantial criminal record. These convictions arose from an incident in February 2021 in which the Applicant discharged a shotgun at a vehicle, injuring the driver.
NHTK’s record of offending also includes convictions in 2017 on weapons and violence charges, and convictions for dishonesty offences in 2015. The Applicant‘s then bridging visa was cancelled because of this conduct, but he then obtained a different category of bridging visa pending the resolution of his protection visa claim. Ultimately, following a decision by the Refugee Review Tribunal in 2015, NHTK and other members of his family were granted protection visas on 7 May 2020.
The Applicant originally arrived in Australia in February 2011, as a teenager, in the company of his mother and siblings. His eldest brother had travelled here on a student visa in 2007. Born elsewhere in the Middle East, NHTK spent a substantial part of his childhood in Pakistan and his family is of Pakistani ethnicity.
NHTK has experienced three periods of immigration detention. The first was upon his initial arrival in Australia. He was also in detention for approximately two months in 2017 following the cancellation of his bridging visa. The Applicant was also in immigration detention from the time of the delegate’s decision, until his release in December 2023 following the decision of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (NZYQ).
The Applicant was represented at the hearing, and lodged a Statement of Facts, Issues and Contentions (ASFIC). The Respondent lodged documents pursuant to s 500(6F) of the Act (G) and Supplementary G documents (SG). A bundle of material obtained under summons from Victoria Police was admitted during the hearing (Exhibit R1).
NHTK gave evidence at the hearing, as did an older sibling Mr Y, his mother, who was assisted by an interpreter in the Pashto language, and expert evidence was provided by a consultant Psychiatrist, Dr Anthony Cidoni.
Legal developments following NZYQ
No substantive oral or written submissions were made by the parties on the legal background that I address here. It is included to provide context to the Applicant’s circumstances, and the conditions applying to his release into the community.
Amendments were made to the Act and the Migration Regulations 1994 (Cth) (the Regulations) following the declaration of orders in NZYQ.[1] These were made through the Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth), which provided for the imposition of new visa conditions and for offences for breach of certain conditions, and the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 (Cth). This latter act further addressed offences, the variation of bridging visas, powers relating to electronic monitoring devices, and – ultimately – introduced a community safety order regime.
[1] See generally, Department of Parliamentary Services (Cth), Bills Digest (Digest No 38 of 2023-24, 5 December 2023).
Bridging visas are addressed in Subdivision AF of the Act. Provisions relating to offences arising from breach of certain visa conditions are found in s 76B to s 76DA. Pursuant to s 76E, the Minister may invite a person to make representations about the granting of a bridging visa with certain prescribed conditions. Further, the Minister must grant a visa not subject to the prescribed conditions if representations about the conditions have been made, and ‘the Minister is satisfied that those conditions are not reasonably necessary for the protection of any part of the Australian community’ (s 76E(4)(a) and (b)).
These matters are relevant given the grant to NHTK on 1 December 2023 of a WR Bridging R (Subclass 070) visa (SG2). I note that this visa is also referred to in this document as a Bridging (Removal Pending) (Subclass 070) visa, and as a Bridging R (Class WR) (Removal Pending) (Subclass 070) visa. It is typically a class of visa granted to persons in immigration detention (Regulations, Schedule 2, clause 070.411). Pursuant to s 76E(2) the rules of natural justice do not apply to the granting of a visa including prescribed conditions.
The letter advising NHTK of this grant notes: the visa is subject to certain conditions; failure to comply with certain conditions may result in a criminal offence carrying a sentence of imprisonment of at least 12 months; and, he was afforded the opportunity to make representations as to why two specific conditions should not be imposed (see further below).
Duration of Bridging R visa
Attachment 1 to the letter states that this visa will remain in effect in accordance with clause 070.511 of Schedule 2 to the Regulations. This clause appears in a section of the Schedule titled Subclass 070 – Bridging (Removal Pending). The period for which the visa is in effect is described by clause 070.511 in terms of expiration through the earliest occurrence of one of three specified events:
(i)when the Minister gives a written notice to the holder … stating that the Minister is satisfied that the holder’s removal from Australia is reasonably practicable;
(ii)when the Minister gives a written notice to the holder … stating that the holder has breached a condition to which the visa is subject;
(iii)when the Minister grants the holder another Bridging R (Class WR) visa under regulation 2.25AB.
This class of visa is provided for by reg 2.20A. Clause 070.211 of Schedule 2 provides that a person is eligible for this class of visa where they meet the conditions identified in subregulation 2.20(12), which include that the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at that time, and that a person is in immigration detention. It appears that reg 2.25AB also provides that despite any other provisions, the Minister may grant such a visa if satisfied that the non-citizen continues to hold a Bridging R (Class WR) visa. This suggests that despite the general eligibility requirements, extension or reissue can now occur when a person is outside immigration detention.
Conditions of Bridging R visa
As noted, certain conditions are prescribed under s 76E. These are specified in subregulation 2.25AD as including conditions 8620 (curfew) and 8621 (electronic monitoring). The full range of conditions are found in clause 070.6 of Schedule 2. Certain conditions arise for consideration under clause 070.612A where visa is granted to a person where there is no reasonable prospect of their removal in the reasonable foreseeable future. More specifically, they are mandatory ‘unless the Minister is satisfied that it is not reasonably necessary to impose the condition for the protection of any part of the Australian community’. Under subregulation 2.25AE, prescribed conditions are to be in place for a period of 12 months, and another bridging visa with these conditions may be imposed before or after this 12 month period.
Conditions in the case of NHTK’s visa are provided in Attachment 2 to the Department’s letter and include:
(a)8303 – not to become involved in disruptive or violent activity threatening harm to the Australian community or a group in the community;
(b)8401 – to report in a manner directed by the Minister;
(c)8513 – to notify of residential address;
(d)8541, 8542, 8543 – to assist with removal from Australia;
(e)8550 – to notify of changes in personal information;
(f)8551, 8562 – restrictions on certain forms of occupation;
(g)8614 – to notify of interstate or overseas travel (before or after travel);
(h)8620 – to abide by a curfew between 10.00 pm and 6.00 am by remaining at a notified address; and
(i)8621 – to wear a monitoring device.
NHTK was afforded an opportunity to object to these latter two conditions. The Applicant stated in evidence that he had provided the Department’s letter to his legal representatives and also confirmed that he is currently subject to these two conditions. The Respondent’s representative submitted that he had been instructed that no representations were made by NHTK objecting to these two conditions.
The Respondent’s representative stressed at the hearing that there is no evidence that NHTK will be removed from Australia and removal to a third country is not presently reasonably practical or feasible. Reliance was also placed upon a recent decision of the Tribunal in DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3922, [40] where it is said that NZYQ has the practical effect of changing the fundamental assumptions underlying Direction 99 (see also RSFIC [65]).
LEGISLATION
Pursuant to s 501(3A) of the Act where the Minister is satisfied that a person has a substantial criminal record and is serving a sentence of imprisonment, their visa is subject to mandatory cancellation. A substantial criminal record includes where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a); s 501(7)(c)).
Mandatory cancellation may be revoked if a decision-maker is either satisfied that a person does pass the character test, or ‘there is another reason why the original decision should be revoked’ (s 501CA(4)(b)(ii)). Guidance for deliberation on revocation of visa cancellation under s 499 of the Act is in the form of Direction No. 99 ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction).
I will address below in these reasons the specified primary (8.1-8.5) and other considerations (9.1-9.4) that must be taken into account in considering whether another reason exists to revoke a mandatory visa cancellation. These considerations are informed by a set of Principles (5.2):
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
ISSUES
I have considered the national police report (G3/A) which confirms NHTK has been convicted to a term of imprisonment of two year’s imprisonment for weapons and violent offending, and to 12 months for a further offence of violence. Accordingly, he fails the character test as defined under the Act.
I must now consider the issue of whether there is another reason the mandatory cancellation of his protection visa should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The nature and seriousness of the conduct
As noted above, NHTK’s most recent offending occurred in 2021 and led to a total effective sentence of two years’ and two months’ imprisonment. He was convicted on four separate charges relating to the discharge of a weapon at a vehicle, recklessly cause injury, and related firearms offences (one being a summary offence).
The Applicant was also sentenced in respect of several convictions in 2017. A conviction for driving while disqualified arose from a successful appeal from orders of a magistrate, resulting in a community corrections order (CCO). NHTK was also convicted and fined in 2017 in respect of two weapons offences. The Applicant was convicted on dishonesty offences in 2015 resulting in a fine, and appeared without conviction in 2015 on a range of driving charges.
I summarise from the remarks of the sentencing judge (G4/B) in relation to the Applicant’s most recent offending:
(a)NHTK plead guilty to the offences, with the firearms offences carrying maximum sentences of twenty years and ten years, and the violence offence carrying a maximum penalty of five years;
(b)the incident was the culmination of a dispute between the victim and others which unfolded across multiple locations and which the Applicant was recruited by the other parties to join;
(c)a confrontation occurred in a carpark between the car in which NHTK was travelling and its passengers, and the van in which the victim was riding, this included an attempt to block the van and its rear window being smashed with a golf club;
(d)NHTK emerged from a vehicle at this point with a sawn-off shotgun and the van drove away, and the Applicant pursued on foot, and then fired into the passenger side door of the van, resulting in injury to the victim for which they were treated in hospital;
(e)NHTK was found in possession of the firearm and ammunition some three months later, and was at the time a prohibited person due to a personal protection order;
(f)the offending was a ‘very dramatic escalation’ in NHTK’s criminal history, and it was accepted as being ‘very serious offending’, and a serious example thereof, and no explanation for the surrounding circumstances would justify it as it was a ‘breathtakingly serious thing to do’;
(g)while the victim’s injuries were superficial, they were widespread and the judge took into account the terror inflicted;
(h)the Applicant’s childhood in Pakistan was considered, including experience of violence and intimidation in the family home near the border with Afghanistan, as well as his transition to Australia and development of a cannabis habit in his late teenage years;
(i)reports from Dr Anthony Cidoni, psychiatrist, and Dr Brooke Langskaill, psychologist were considered, and they highlight persecutory delusions and a suggested diagnosis of schizophrenia, with recommendations for further review and interventions;
(j)the Applicant’s legal representative did not seek to link the significant undiagnosed psychiatric symptoms with moral culpability for the offending, but NHTK was referred by the judge for urgent psychiatric review, having found that it was ‘abundantly clear’ that the Applicant had an undiagnosed mental health condition;
(k)with respect to rehabilitation, account was taken of family support but the prospects were ‘guarded’ due to ‘undeveloped’ insight, but considered ‘better’ should mental health support be pursued; and
(l)a 30-month CCO was imposed to follow release from prison and includes orders to further address reoffending through programs, including mental health treatment and assessment, as well as judicial monitoring.
The materials include VicRoads records concerning a series of licence suspensions and cancellations over a sustained period (SG3), but this record and any associated convictions were not addressed in evidence.
A decision record dated 11 May 2017 (SG9/a) sets out the deliberations of a delegate of the Minister administering the Act in deciding to cancel NHTK’s Bridging A visa under s 116 of the Act. This provision allows for cancellation where the presence of the visa holder may be a risk to the community. The decision appears to have been based upon the Applicant’s criminal charges and convictions up to that date, and NHTK made representations about the cancellation decision.
Among matters raised by NHTK in a letter dated 24 April 2017 (SG9/b) are:
(a)that he experienced domestic violence at home leading to the separation of his parents, and his mother experienced mental health issues;
(b)that he ‘went off the rails’ and became involved with ‘guys’ who were a ‘bad influence’ and commenced offending, and then experienced employment and financial difficulties;
(c)after receiving the notice of intention to cancel his visa he ‘stopped getting into so much trouble’ and he wants to ‘straighten up [his] life’; and
(d)he was ashamed of his behaviour and deeply regretted the hurt caused by his crime.
In evidence at the hearing, NHTK gave a relatively detailed account of his involvement in the shooting. He stated that he had found the shotgun when dirt-biking with friends and helped to repair it. I understood him to say that it remained in the bag in which he had originally found it, in his car.
The Applicant stated that he was called by a friend to assist him in the ongoing altercation described in the sentencing remarks. He stated that his friend said ‘to make sure you have something’, which I took to be a reference to the shotgun. NHTK described arriving at the location of the shooting and descending from his vehicle when the van in which the victim sat drove towards him. He then armed himself with the shotgun which he said was loaded, and ran in the same direction as the van, which appeared to be heading out of the car park. The Applicant stated that he was running with his finger on the trigger and the gun ‘went off’. He also stated in evidence that his friend asked him to shoot.
NHTK stated that he was ‘too stupid’ and ‘overreacted’, but also that he had been scared and the purpose of the weapon was to protect himself. He felt bad about injuring the victim. In cross-examination the Applicant stated that he had got in trouble for the incident because the other participants ‘couldn’t handle their own mess’.
In respect of his other offending, NHTK stated he did not have a strong memory of an incident at a 7-Eleven in which he had been involved in a dispute and pulled out a knife which he explained was with him as it was used in his work.
Submissions and findings
The written and oral submission on behalf of the Applicant acknowledge that his most recent instances of offending constitute serious examples of serious offending involving violence (ASFIC [8]). It is also contended that he was exposed to violence at a young age leading to desensitisation, and that there is evidence of serious psychiatric impairment [9].
The Respondent also submitted orally and in writing that NHTK has been convicted of very serious, violent conduct, and in addition has convictions for other weapons and violent offending (RSFIC [21]). It is further contended that the nature and frequency of the Applicant’s violence offences, alongside his driving offences (including disqualification) demonstrate disregard for the law [22]. Accordingly, it is submitted that his offending has been frequent, there is an increasing trend of seriousness, and its cumulative impact should be considered [23].
In addition, the Respondent relies upon certain representations made by NHTK in 2017 when he was notified that consideration was being given to refusing his application for a bridging visa, in the context of his earlier offending [7], [24]. That is, that the Applicant continued to offend after being made aware of the consequences this would have for his immigration status [25]. In short, the Respondent submits that the Applicant’s conduct should be considered very serious [26].
I consider that NHTK has been involved in violent crime that must be considered very seriously, in accordance with the guidance provided in the Direction (8.1.1(1) a)(i)). I add that the account provided by the Applicant of the circumstances of the latest offending varied in relevant details from the findings of the sentencing judge. The sentences imposed, particularly for his most recent offending, were at the lower end given the maximum terms of imprisonment available (8.1.1(1) c)).
The Applicant has a record of relatively discrete episodes of offending, but there was a substantial increase in seriousness, and I put some weight on the cumulative impact of repeat violent offending (8.1.1(1) d), e)).
Given the fact that NHTK was previously subject to visa cancellation due to his earlier criminal offending, I also consider that he can be understood as being aware of the consequences of further offending in terms of his migration status (8.1.1(1) g)).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clinical evidence
I summarise from the report of Dr Langskaill (SG1):
(a)in addition to external acts of intimidation and violence experienced as a child, the Applicant reported physical discipline administered at home, and NHTK’s mother had a history of mental distress [8];
(b)the Applicant reported bullying and physical altercations both in Pakistan and Australia, and had a history of alcohol use to the point of blacking out in his late teens and cannabis use escalating to daily use [14], [21]-[23];
(c)NHTK reported symptoms of paranoia commencing around 2016 and arising in a range of contexts, for which he did not seek treatment, and which were dismissed by family as being related to illicit drug use [27]-[31]; and
(d)psychometric testing was administered but was affected by NHTK’s response style, however clinical scales indicated ‘a person who is confused, emotionally labile, and angry’, with ‘marked interpersonal dysfunction and significant thinking and concentration problems’ [49]-[54].
I summarise as follows from Dr Cidoni’s report (G13):
(a)NHTK did not present with disordered thought, but exhibited persecutory delusions, and acknowledged not being forthcoming in his prior psychological assessment due to concerns about being listened to [17]-[21];
(b)the Applicant reported various forms of paranoia and reported hearing voices, however denied other hallucinations and did not consider his symptoms to be due to illness. Dr Cidoni observes that the Applicant’s report to Dr Langskaill that symptoms had ceased appears not to have been accurate [31]-[39]; and
(c)NHTK ‘has suffered from a psychotic episode, which appears to have been present over a six year period and appears to have sufficient features to suggest the diagnosis of schizophrenia’, and he requires treatment with antipsychotic medication [56]-[58].
Dr Cidoni gave evidence consistent with this report, and confirmed that NHTK was not prescribed medication at the time of his consultation, but was using Mirtazapine, an anti-depressant. He stated that it was difficult to be specific about factors influencing the Applicant’s offending behaviour, but proposed that NHTK was vulnerable to the influence of others, and may respond in a paranoid way to circumstances and have a ‘heightened sense of fear and threat’.
In cross examination, Dr Cidoni stated that he had not been engaged by the Applicant in a treatment role, but could do so. He also stated it is difficult to be clear about the relationship between NHTK’s anger issues – being a ‘manifestation of intense emotion’ – and his psychosis. In his opinion, treatment of the latter should be the primary focus, and this is mainly a matter of medication.
I raised with Dr Cidoni the Applicant’s participation in a CCO. In his experience working in this area, Dr Cidoni considered that separate treatment would be required for psychosis via area mental health services or a private psychiatrist. This is because community corrections ordinarily only refer participants to generalist counsellors and capacity to engage with this support may be affected by the psychiatric symptoms.
A counsellor from Foundation House prepared a report into NHTK’s psychosocial functioning dated 25 September 2023 (SG8). It notes contact with the Applicant over six sessions between June and August 2023. The writer observed paranoid thinking and minor impaired judgment, but notes that NHTK demonstrated insight into his aggressive thoughts and their impact. The Applicant also expressed willingness to engage in therapeutic support, noting a history of brief engagement with counselling in 2017 or 2018 for a few sessions, and some engagement with anger management support in detention. The report describes current medication being Mirtazapine and Aripiprazole. In summary, it was decided NHTK would continue to access anger management support and mental health support in detention and, if not, he could be referred back to Foundation House.
Detention records
Incident reports arising from NHTK’s time in immigration detention in 2017 and 2023 are included in the materials (SG5). In summary, there are three reports from 2017 categorised as ‘minor’, involving behavioural issues or disturbance. There are four incidents in 2023 also categorised as ‘minor’ involving similar conduct. There are two ‘major’ incidents, one in September 2023 involving damage to property, and one in November 2023 involving a physical altercation with another detainee.
Clinical records relating to mental health treatment and consultations during detention are also in the materials (SG6). The latest appears to be a record 18 October 2023 which records that NHTK considered ‘everything is good’ and saw no need to continue engaging the mental health team and is maintaining compliance with medication. There are a number of other relatively routine reports, including those confirming attendances with Foundation House. They also note his preference for accommodation within a particular unit within immigration detention.
Other evidence
In his most recent written statement (G12), NHTK states, relevantly:
(a)he has struggled with mental health for a number of years and tried to speak up about it, but as it carries a certain stigma his family ignored the issue;
(b)he has learned to manage anxiety and depression but had at time turned to drugs and alcohol, and gather with ‘socially inept and unsavoury individuals’;
(c)his most recent offending was out of character, he has a record of work experience and is diligent, and is qualified and experienced as an insulation installer; and
(d)he has attended anger management counselling in the past and understands mental health is as important as physical health, he has concerns about his mother’s health and has had the support of his family in the past.
In his previous statement (SG9/e) the Applicant outlines his education and training experience. He refers to leaving school after year 12 and having an interest over several subsequent years in undertaking vocational training, but not having the funds to enrol. In his most recent Personal Circumstances form (G8), the Applicant declares that he has a Certificate II in Building and Construction, and lists several vocational courses completed.
Mr Y states in his recent written statement (G11) that his brother’s behaviour in the past went beyond ‘rebellious tendencies of youth in revolt’ to drug and alcohol dependence and episodes of delusion and paranoia. NHTK holds a special place in his heart and plays an important role in the lives of Mr Y’s two sons.
The Applicant’s mother states in her statement (G10) that she considers his offending to be related to his mental health challenges, and that it was out of character. His ‘time in captivity’ has given him the chance to reflect on the gravity of his actions.
In his evidence, NHTK stated that he currently lives with his father and that he has commenced his CCO but is waiting for details of what activities he is required to undertake. He stated that he stopped any illicit drug use in 2017-2018. The Applicant confirmed that he presently takes two forms of medication including Avanza [Mirtazapine], and another he could not recall, and does not yet have a prescription as he is relying on those supplied in immigration detention. He believes the medication helps him a lot. Should he be in the community without the conditions on his present visa, NHTK stated he would keep himself busy and outlined his hopes to establish a motor trading business. He understands that he is prevented from travelling due to the current visa conditions.
In cross-examination, NHTK confirmed past attendance upon a psychologist, anger management training and a post-trauma course, as well as being involved in ‘a lot of religion’ by which I took him to mean praying five times a day. When asked if he intends to continue with therapy, he stated that he is waiting for the terms of his CCO to be finalised, and he will ‘continue if required’. He stated that he has already learned a lot from books recommended to him.
NHTK had limited recall of incidents in detention in 2017. He essentially acknowledged incidents in 2023. In respect of an incident in April 2023 said to involve throwing and kicking objects, the Applicant sought to explain this as a strategy apparently conducted in consort with a detention officer in order to provide an excuse for transfer to a separate unit. He agreed that he had ceased engagement with mental health services, saying ‘to be honest, I got sick of it’. In further questioning it emerged that NHTK wanted the assistance of medical services in order to secure single room accommodation and disengaged when this was not possible.
Finally, the Applicant confirmed in response to a question from myself that he attended a scheduled judicial monitoring event with the sentencing judge in October 2023, and the judge removed ongoing monitoring from the terms of his sentence.
Mr Y explained in evidence that his brother is working for an insulation business that he operates, and that he has funded the Applicant’s legal representation now and in the past. Mr Y stated that apart from his sisters who run businesses, and his mother who receives Centrelink benefits, he supports the rest of the family. He stated that the Applicant is calm and quiet since his time in prison and is now a different person. Mr Y has also impressed upon him the significance of making a permanent change to his behaviour. In cross-examination, he stated that the CCO officer had been sick and they are waiting for his brother’s plan to be established. He also assists the Applicant by advising him to make appointments, and make banking and related arrangements.
When I asked the witness about the family’s earlier attitude to NHTK’s mental health, Mr Y stated that he felt guilty. He gave an example of a time when the Applicant fell following what was thought to be a seizure, and he had responded that NHTK had consumed ‘too much Red Bull’. He noted his mother’s mental health issues and stated that his younger brother also has anger management issues and schizophrenia.
Submissions and findings
For the Applicant, it is primarily contended that it is a matter for the Tribunal to determine the extent to which NHTK has ‘developed the necessary insight into his offending for a favourable finding to made in respect of his rehabilitation’ (ASFIC [12]). At the hearing, it was submitted that as the use of a monitoring device can be considered protective of the community, and a decision in favour of revocation would necessarily mean that lesser measures would be in place to reduce the risk of reoffending. It was also conceded that the ongoing CCO means that measures are in place to manage risk.
At the hearing, the Respondent’s representative acknowledged the submissions for the Applicant as highlighting somewhat of a paradox. That is, that if the decision under review is set aside, conditions applying under the bridging visa fall away. It was also contended that there is no expert evidence in this matter concerning risk of recidivism, and the sentencing remarks provide the best guide.
It was submitted that there is limited evidence about current or future treatment for NHTK’s mental health. Indeed, the evidence of Dr Cidoni suggests something more than what might arise under the CCO is likely to be required. It was also submitted that the better view of the Applicant’s evidence is that there have been multiple reports of poor conduct in detention, and that he withdrew from medical services when it became apparent he could not advance his accommodation preference that way. In short, NHTK’s evidence provides little confidence there is only a low risk of reoffending, and he has limited insight into the relevant risk factors.
It was further contended that it is relevant that NHTK’s most recent and more serious offending occurred after a period in immigration detention in 2017. In addition, incident reports indicate that examples of poor conduct in detention occurred even after having made submissions in support of his revocation request. It was submitted that there is a significant risk of the Applicant reoffending and that this consideration weighs against revocation.
Written submissions contend that there is a real and present risk of NHTK continuing to engage in threats, coercion and violence, and that this risk is unacceptable (RSFIC [31]-[32]). The following further contentions are raised in support of this, and the submission that this consideration weighs heavily against revocation:
(a)while the report of Dr Cidoni identifies the offending as related to the Applicant’s disadvantage when young and his mental health, Dr Langskaill identifies issues including emotional instability and lack of formal mental health treatment [29]-[31];
(b)the likelihood that NHTK has schizophrenia and has been recommended for psychiatric review [33];
(c)a history of substance abuse [34];
(d)the sentencing judge’s guarded opinion about prospects for rehabilitation [35];
(e)the evidence of limited engagement in mental health treatment, and apparent resistance to counselling [36];
(f)the ‘extreme concern’ that arises from the Applicant’s behaviour in immigration detention [39];
(g)sporadic engagement with mental health services in detention [40];
(h)the absence of other factors protective against reoffending [41]; and
(i)the conditions that apply to NHTK’s current Bridging visa mean that affirming the delegate’s decision provides ‘greater assistance to reduce the risk of reoffending’ [42].
The Direction requires decision-makers to have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (8.1.2(1)). In assessing this risk, consideration must be given to the nature of any future harm, and the likelihood of further criminal conduct, taking into account any evidence about risk, and of rehabilitation (8.1.2(2)).
There is no formal risk assessment emerging from expert evidence provided in this matter. I consider the best guide to be the remarks of the sentencing judge with respect to prospects for rehabilitation. At that time, NHTK’s prospects were considered guarded but with potential to improve with engagement with mental health treatment.
There is some, but limited, evidence of a history of engagement with mental health support, however there has been more recent support provided by Foundation House. I consider that the evidence indicates that, at least in some degree, the Applicant was motivated to maintain engagement in order to seek his preferred accommodation style. I cannot rule out that his preferred accommodation did not relate to his mental health condition, and in his view offered him some real benefit in that respect.
NHTK appears not to have received comprehensive mental health support, in the sense of medication and counselling, until relatively recently. While his record of offending is not entirely explained by his experience of poor mental health, I consider that his psychiatric condition has clearly been a key factor in his personal development, leading to poor lifestyle choices. Accordingly, maintenance of medication and continued awareness of the need for therapy are likely to reduce the risk of reoffending, as identified by the sentencing judge. That said, the evidence suggests NHTK has not fully embraced the possible benefits of mental health support outside of anything otherwise mandated.
The evidence indicates that he currently has a supportive family and is employed. Relevantly, I consider that the family has gained new insight into the Applicant’s mental health situation. There is limited evidence about his capacity to maintain gainful employment outside of his family network, but I accept that he has certain qualifications and experience that may serve him in other work environments.
NHTK’s present circumstances are unusual in that he is subject to a range of conditions on his bridging visa, which can be understood from their nature as restrictive. Most relevantly, the curfew – if complied with – physically reduces his time in the community. The reporting obligation and wearing an electronic device might both serve as monitoring actions that remind the Applicant of the need to remain of good conduct. None of the conditions of themselves necessarily prevent criminal conduct. Breach of conditions may give rise to criminal proceedings and the imposition of mandatory penalties.
The terms of the legislation and supporting provisions in the Regulations, as amended, suggest that an inference might be said to arise that NHTK has been determined to be a risk to the community, and that the conditions imposing a curfew and electronic monitoring are reasonably necessary to protect the community. As noted above, no substantive submissions were made about the legislative regime now in place. There is also limited evidence about the apparent failure of NHTK to make submissions in respect of the imposition of the prescribed visa conditions.
The possibility arises, in the circumstances of this matter, in having relevant considerations being diverted by a false dichotomy. The statutory question being addressed is whether another reason exists to revoke the mandatory cancellation of NHTK’s protection visa, albeit that the practical effect of revocation would indeed mean that the visa conditions would no longer apply. Therefore, the primary objective is to consider what the risk of future harm might be if the Applicant were to return to the community on a protection visa.
In effect, I have received submissions addressing the practical nature of certain of the conditions applying under NHTK’s bridging visa. I have included additional background material in these reasons to explore aspects of the bridging visa regime. However, the basis for any inference (or indeed, more concluded view) about the risk NHTK may pose to the community remains somewhat obscure. It might be said that these conditions apply in NHTK’s case by operation of law. For these reasons, and for the conclusion I reached above as to the practical effect of the conditions, I consider that I should not place any particular weight here on the more restrictive prescribed conditions.
I consider there are several positive, ‘protective’, factors that operate to reduce risk of reoffending being: the Applicant’s use of medication; the support of his family and engagement in employment; his capacity to plan for the future; and, his management in the community under the CCO.
Factors that can be understood as potential indicators of a higher level of risk are: the Applicant’s limited insight into his recent violent offending (as his evidence varied from the findings of the sentencing judge); his apparent intent to pursue further mental health support if ‘required’ under his CCO; the expert evidence that this alone would not be adequate to manage his psychiatric condition; and, his record of reported misbehaviour in immigration detention.
Overall, I do not consider the risk of further offending rises to the level of substantial risk, as submitted by the Respondent. This is principally due to NHTK’s embrace of medication and his family support, and also partly due to the relatively limited history of previous offending. However, it is a real risk and, for clarity, I consider this to be a risk of aggressive, confrontational and/or violent behaviour.
Summary finding
It was contended for the Applicant that if NHTK is considered unlikely to reoffend, this consideration, should weigh modestly against revocation [ASFIC 13]. The Respondent contends that this consideration should weigh heavily against revocation.
I have found that NHTK’s offending should be considered as very serious. I have also found that there remains a real risk of future violent or aggressive reoffending. In summary, I find that this first primary consideration weighs moderately heavily against revocation.
Family violence committed by the non-citizen
As noted, Victoria Police records form Exhibit R1. This material was adduced by the Respondent after I raised with the parties the existence of a record that might suggest that this consideration is engaged, notwithstanding that neither party had addressed it in material lodged prior to the hearing.
In December 2014 an incident report was created (R1, 26-28) in respect of an alleged criminal damage incident involving family violence, and in which the Applicant is identified as the offender. It describes an argument at the family home between NHTK and an older brother, in which a younger brother also became embroiled. The report refers to the Applicant displaying both a knife and baseball bat, the latter used to damage an internal wall. It states that threats and violence had been underway for six months.
In his evidence, NHTK accepted the general thrust of the report, but denied having a knife. He noted that following a court event he undertook to repair the damage and did so. It appears from the evidence of the other witnesses that the Applicant has not committed acts of violence against family members, and is not, and has not been, perceived as a danger to the family.
It was submitted for the Applicant that he was a young man at the time of the incident, and it is not the most serious example of such conduct. The consideration therefore does not weigh strongly against revocation. The Respondent contended that the police record should be accepted in its totality.
Family violence is defined broadly in the Direction and embraces both physical acts and behaviour that causes fear in a family member (4(1)). This consideration is also phrased broadly to include both offending giving rise to charges, and to conduct amounting to family violence which did not lead to a conviction, but is reflected by information or evidence from independent or authoritative sources (8.2(2)).
Based on the material and evidence, I find that NHTK has been involved in family violence conduct, but that it must be considered infrequent (8.2(3) a)). It appears that the Applicant took responsibility for the acts and should be seen as understanding the impact of his behaviour (8.2(3) c)).
On balance, I find that this consideration weighs slightly against revocation.
The strength, nature and duration of ties to Australia
This consideration requires decision-makers to consider the impact of a decision with respect to revocation on the non-citizen’s immediate family members in Australia, and to take into account their ties and social links in general (8.3(1), (3)). Weighting is to take into account their age on arrival and the time spent making a positive contribution to the Australian community (8.3(4)).
I accept from the oral and written evidence in this matter, that all of NHTK’s immediate family are in Australia and are Australian citizens. I have noted evidence above about the Applicant’s work history. I note that he arrived in Australia during his middle teen years and has since spent his life here.
It is contended for the Applicant that he has resided in Australia for 12 years (being effectively his adult life) and that his immediate family are all resident in Australia, and accordingly this consideration weighs in favour of revocation (ASFIC [15]-[18]).
The Respondent accepts that non-revocation would have an adverse effect on the Applicant’s immediate family in Australia, and that it weighs in favour of revocation, but contends that it does not outweigh other primary considerations (RSFIC [48]).
I consider that the relevance of this consideration, too, is affected by the fact that the Applicant has been released into the community on a bridging visa. He does not face the prospect in the foreseeable future of being separated from his family. However, as I note below, there is at least a possibility of his removal to a third country in the future.
Accordingly, I consider that this consideration is engaged, but due to the Applicant’s present circumstances, lesser weight should be afforded to it. I therefore find that this consideration weighs slightly in favour of revocation.
Best interests of minor children in Australia affected by the decision
The Direction requires me to determine whether non-revocation is, or is not, in the best interest of a child affected by the decision (8.4(1)).
There is no dispute in this matter that the written and oral evidence points to a long-standing and close relationship between NHTK and two minor children of his older brother, Mr Y. At the hearing, the Applicant stated that he now sees them regularly including taking them meals and spending time with them when he gets off work early.
It is submitted for NHTK that non-revocation would affect the strong relationship between the Applicant and his two nephews, and that therefore this consideration weighs in favour of revocation (ASFIC [19]-[22]). At the hearing, however, it was acknowledged that the Respondent has indicated that NHTK will not be subject to removal from Australia, and that he has a non-parental relationship with his nephews.
The Respondent’s written submissions refer to the consideration of, and moderate weight given by the delegate, to the relationship between NHTK and his nephews (RSFIC [50]). However, at the hearing, it was contended that less weight should be given to this consideration on the basis that, irrespective of the outcome of the matter before the Tribunal, the Applicant’s relationship with his nephews will not be affected.
I accept the nature and duration of this relationship as described in evidence, noting that it is non-parental and that NHTK has spent nearly three years out of the community in prison and detention (8.4(4) a)). I also accept it is likely he will continue to play a positive role in their lives in the future, but I do not consider that any separation is likely to have a substantial impact on the welfare or wellbeing of the nephews (8.4(4) b), d)).
For reasons that are addressed below, there remains a possibility that NHTK may be removed to a third country in the future in the case of non-revocation. On this basis, I find that this consideration weighs slightly in favour of revocation.
Expectations of the Australian community
This consideration largely reflects the contents of the first and second principles identified in the Direction (5.2(1)-(2)). That is, it states in normative terms the expectation that the Australian community holds that those who have breached the underlying expectation that non-citizens be law-abiding, not be allowed to remain in Australia (8.5(1), (4)). Their conduct may be of such seriousness that this expectation prevails, regardless of whether there is a measurable risk of further physical harm being caused (8.5(2)-(3)).
It is conceded for the Applicant that this consideration weighs against revocation due to the seriousness of NHTK’s offending (ASFIC [23]).
The Respondent in its submissions highlights the normative nature of this consideration, and submits that, in the context of the most recent offending, the potential harm should NHTK engage in further offending is sufficiently serious that countervailing considerations in his favour do not justify revocation (RSFIC [54]). It is contended that this consideration weighs heavily against revocation [56].
I do not consider that NHTK’s past criminal conduct falls within any of the specified forms of conduct raising particularly serious character concerns (8.5(2)). However, the consideration is clearly engaged as a result of his criminal record. As noted above, there is a risk of further offending, albeit one that was not quantified by expert evidence.
I consider it reasonable to take into account, in a general sense, the Applicant’s personal background as it informed the sentencing process. In short, his conduct can be understood as involving a measure of delinquency arising from his life in Pakistan and as an asylum seeker in Australia. NHTK’s history of undiagnosed mental health conditions is also an important factor in his background and offending and past conduct more generally.
Accordingly, I find that this consideration weighs against revocation.
OTHER CONSIDERATIONS
The Direction provides four other considerations that must be taken into account, but they do not exhaust the factors that might contribute to addressing the statutory test (9(1)). No submissions were made by the parties with respect to the other considerations, Impact on victims and Impact on Australian business interests. I also do not consider that these have been engaged on the basis of the evidence, and accordingly they weigh neutrally.
As noted below, I have determined that it is appropriate to address matters that relate to NHTK’s current visa status as a separate consideration.
Legal consequences of the decision
This consideration is explicitly framed with reference to Australia’s non-refoulement obligations, being an obligation not to return a person to a place where they would be at risk of certain defined forms of harm (9.1(1)-(2)). These obligations are engaged where a protection finding has been made (9.1.1(1)). The Direction notes that due to s 501E of the Act, in the case of a non-revocation decision, a person is prevented from applying for another class of visa other than a Bridging R visa (9.1.1(3)).
It was originally submitted for the Applicant that NHTK is subject to removal to Pakistan as soon as reasonably practicable under s 198 of the Act (ASFIC [24]). Contentions also address s 48A of the Act and the effect of the decision in NZYQ [25]-[26].
Submissions at the hearing addressed the conditions applying to the Applicant’s bridging visa and the uncertainty about his immigration status. It was contended that the bridging visa conditions are onerous, and indeed amount to a form of community detention. It was also contended that there is indeed a possibility of removal to a third country, subject to Ministerial decision-making, and the evolution of government policy, or the law.
The Respondent submits that a protection finding is in place and s 197C(3) of the Act is engaged, meaning that removal to Pakistan ‘is not required or authorised’ (RSFIC [68]-[69]). Furthermore, while any removal of NHTK would be to a third country, it is also explicitly acknowledged that ‘there is no real prospect that it will be practicable to remove the applicant from Australia in the reasonably foreseeable future’ and his resulting release into the community is noted [69].
More specifically, it is contended that the practical effect a decision to revoke the mandatory cancellation of NHTK’s visa is that his current bridging visa would cease to have effect, and the Applicant would be the holder of a protection visa [70]. In such circumstances, it is contended, limited weight should be attached to the legal consequences particularly because the Applicant is already in the community, and will remain in the community, irrespective of the Tribunal’s decision.
Further, the Respondent acknowledges that there are a wide range of conditions applying to the Applicant’s current bridging visa, which are more onerous than those arising in his protection visa [71]-[72].
It was contended at the hearing that s 198 of the Act is not engaged as NHTK is no longer an unlawful non-citizen, as the holder of a class of bridging visa. It was further submitted that in the Applicant’s circumstances, s 501E of the Act applies, and he is unable to apply for another class of visa should the mandatory cancellation not be revoked. In short, the legal consequences are confined to two possibilities: the retention of NHTK’s current bridging visa; or, the return of his protection visa.
The Direction refers to the objects of the Act, which include the regulation of the presence in Australia of non-citizens (5.1(1)). Ordinarily, where a visa is cancelled and no protection finding is in place, a person affected is liable to removal as soon as is reasonably practicable. NHTK, however, has a visa, and is subject to a protection finding. The Respondent is therefore, strictly, correct to submit that there are two clearly defined legal outcomes possible. In either case, the outcome is that the Applicant will remain in Australia. The question remains as to what conditions apply to his stay.
I consider that the focus of this consideration is intentionally defined by reference to non-refoulement obligations. Accordingly, as NHTK will not face harm in his home country regardless of the decision made, I find that this consideration weighs neutrally.
I will address the Applicant’s contentions about the impact of the conditions attaching to NHTK’s bridging visa below.
Extent of impediments if removed
This consideration addresses impediments arising for a non-citizen if removed to their home country (9.2(1)).
It was originally submitted for NHTK that he would face difficulty if returned to Pakistan, in particular arising from challenges arising from his mental health issues (ASFIC [27]-[28]). It was also contended that the Applicant has limited economic opportunity in that country and a lack of family connections and support network [29]-[30]. Accordingly, it is submitted this consideration weighs in favour of revocation [31].
As noted, it was submitted at the hearing that there remains a prospect NHTK may be removed to a third country at some point in the future.
It is submitted for the Respondent that, following the contentions arising in respect of the preceding consideration, NHTK will not be removed to Pakistan and, therefore, this consideration weighs neutrally (RSFIC [73]-[76].
I agree with the Respondent’s submissions that this consideration must weigh neutrally in the context of the protection finding that applies to NHTK. I address the Applicant’s argument about the impact of removal to any third country below.
Impact of bridging visa and its conditions
The Direction makes clear that the specified other considerations do not limit the scope of considerations that may be relevant in determining whether there is another reason the mandatory cancellation should be revoked (9(1)).
The conditions of the Applicant’s current visa were addressed in written and oral evidence, and have been set out previously in these reasons. NHTK was also asked in evidence about the impact upon him of being removed to a third country. In response, he expressed some bemusement, and appeared not to be able to contemplate the reality of such an option asking, in short, ‘where would I go?’.
It was submitted for the Applicant that his present bridging visa was effectively of indefinite status but it was also contended that, were he to be removed to another country, the consequences for his family would be devastating. It was also contended that the conditions under NHTK’s bridging visa were factors that weighed in favour of revocation, due to the constraints they place upon his life in general. It was submitted that it should be inferred that his evidence about electronic monitoring raises a more general inference about other impacts of this specific condition.
The Respondent contended that NHTK gave quite limited evidence about the impact of electronic monitoring, and that the evidence generally indicated that the Applicant had accepted the restrictions imposed. It was further submitted that, while the opportunity was afforded to NHTK to challenge conditions, including the imposition of the monitoring device, no such challenge appears to have been raised. In reply, the Applicant’s representative proposed that, rather than acquiescing to the visa conditions, NHTK had expressed some contrition about his present circumstances.
I accepted above that the specific and direct legal consequences of a decision on revocation are clearly definable. However, it is also correct to say that there remains some uncertainty about the length of time during which the conditions currently applicable will remain in place. Equally, there is more than a theoretical possibility about removal to a third country; the name of the Applicant’s bridging visa alone makes this apparent. Notwithstanding this prospect, I understand that the law provides for the extension, or alteration of the terms of, the bridging visa.
I instigated some discussion at the hearing about the proper scope of inquiry in circumstances such as this. In summary, it is reasonable to say that administrative decision-making is bound by the requirement to make findings only upon a rational, probative basis. Findings may also be based on inference, but not on speculation or suspicion, should there also be a basis for such inference (see, for example, Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14 at [100]-[103]).
The Respondent’s representative also directed me to the first instance decision in DOB18 v Minister for Home Affairs [2018] FCA 1523, at [32]-[35], where His Honour states that it is important ‘to avoid speculation as to what might or might not occur in future decision-making’ in the context of ‘what might potentially be part of a wider process of decision-making’ [35].
While that particular decision and related authorities appear to arise in specific circumstances, the proposition stated above is broadly relevant. The legal and administrative avenues in NHTK’s future are relatively clear, but some uncertainty pertains. This uncertainty arises principally from the novelty of the legal response to NYZQ, and the way the Applicant’s circumstances may, or may not, change. However, it is not reasonable to place too much weight on uncertain future developments.
Overall, I consider that these circumstances, taken together with the limited, but otherwise clear evidence obtained at the hearing about the visa conditions now in place, should be understood as imposing a peculiar level of uncertainty upon NHTK’s life in the community. Indeed, there is some uncertainty too about the length of time he may remain here. Granted, the Applicant is not in detention and does not face the prospect of indefinite detention.
Overall, I consider this further consideration is a factor that weighs moderately heavily in favour of revocation.
CONCLUSION
Of the primary considerations, I have found that Protection of the Australian community weighs moderately heavily against revocation, Family violence committed by the non-citizen weighs slightly against revocation, The strength, nature and duration of ties to Australia and Best interests of minor children weigh slightly in favour of revocation, and Expectations of the Australian community weighs against revocation.
Of the Other considerations, I have found that all of the identified considerations (Legal consequences of the decision, Extent of impediments if removed, Impact on victims, and Impact on Australian business interests) weigh neutrally. However, I have found that another consideration the Impact of conditions associated with bridging visa weighs moderately heavily in favour of revocation.
The Direction provides that primary considerations should generally be given greater weight, and one primary consideration may outweigh others (7(2)-(3)). I have sought in these reasons to take account of the manner in which the granting to NHTK of a bridging visa, together with its associated conditions, has affected the application of the factors set out in the Direction. This has had some impact upon a number of specified considerations, but more critically has led to me addressing it as a separate other consideration.
Overall, I consider the weight afforded to considerations in favour of revocation, including primary considerations, should not outweigh the somewhat greater weight attributed to those primary considerations that count against revocation. I consider that NHTK remains to fully grasp the nature and seriousness of his offending, and remains at an early stage in his journey to managing his mental health. In short, I have not identified any countervailing considerations sufficiently strong such as to justify revocation.
DECISIONFor the reasons given above, the Tribunal decides to affirm the decision dated 25 October 2023 not to revoke the mandatory cancellation of the Applicant’s Protection (Subclass 866) visa.
I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
...............[SGD].............
Associate
Dated: 18 January 2024
Date(s) of hearing: 4 & 5 January 2024 Date final submissions received: 22 December 2023 Counsel for the Applicant: Shahed Sharify Solicitors for the Applicant: Haitch Legal Solicitors for the Respondent: Sparke Helmore
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